Arsenault v. Sunter, 2014 HRTO 499

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Pierre Arseneault Applicant

-and-

Adrian Sunter Respondent

A N D B E T W E E N:

Pierre Arseneault Applicant

-and-

City of Ottawa Respondent

DECISION

Adjudicator: Aida Gatfield Date: April 9, 2014 Citation: 2014 HRTO 499 Indexed as: Arsenault v. Sunter

APPEARANCES

Pierre Arseneault, Applicant Self-represented

Adrian Sunter, Respondent Claudius Croiset Van Uchelen, Counsel

City of Ottawa, Respondent No one appearing

IntroductioN

1These are two Applications which were joined. The first is an Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) alleging discrimination with respect to housing because of disability against the applicant’s landlord, Adrian Sunter (“Sunter Application”); the applicant also alleges reprisal by the landlord. The second is an Application (“City Application”) filed under s. 34 of the Code against the City of Ottawa alleging discrimination on the basis of disability.

PROCEDURAL BACKGROUND

2The Sunter Application was filed on June 26, 2013 and the City Application was filed on June 19, 2013. By Case Assessment Direction dated August 13, 2013 the Tribunal, on its own initiative, directed that a joint summary hearing be held to determine whether the Sunter and City Applications (“the Applications”) should be dismissed, in whole or in part, on the basis of delay, or on the basis that there is no reasonable prospect that the Applications, or parts of the Applications, will succeed. The Tribunal also directed that the summary hearing address whether the Sunter Application should be dismissed, in whole or in part, on the basis that another proceeding has appropriately dealt with the substance of the Application, abuse of process and/or issue estoppel. The respondents were not required to file a response. The summary hearing was held on December 10, 2013.

Reasonable Prospect of Success

3The summary hearing process is described in Rule 19A of the Tribunal’s Rules of Procedure as well as the Tribunal’s Practice Direction on Summary Hearing Requests. The purpose of a summary hearing is to consider, early in the proceeding, whether an application should be dismissed in whole or in part because there is no reasonable prospect that the application will succeed. The Tribunal cannot address general allegations of unfairness, unrelated to the Code, in areas such as employment, services or accommodation. Discrimination generally involves an allegation of unfair treatment on the basis of one or more of the grounds under the Code, such as race, gender or disability. Unfair treatment is not discriminatory in the legal sense unless there is proof that one or more of these personal characteristics was a factor in the treatment the applicant experienced.

4The test that is applied at a summary hearing is whether an application should be dismissed in whole or in part because it has no reasonable prospect of success (See, Dabic v. Windsor Police, 2010 HRTO 1994). At the summary hearing stage, the Tribunal is not determining whether the applicant is telling the truth or assessing the impact of the treatment they experienced. Indeed, many experiences of unfairness, which are not defined as discrimination in the legal sense, can leave a person with significant financial and emotional damage.

5The test of no reasonable prospect of success is determined by assuming the applicant’s version of events is true unless there is some clear evidence to the contrary. In some cases, for example, the applicant will not dispute the respondent’s version of one or more of the facts.

6Accepting the facts alleged by the applicant does not include accepting the applicant’s assumptions about why they were treated unfairly. The purpose of the summary hearing is to determine if reasonable inferences can be drawn from any facts or evidence the applicant is able to point to which tend to support the applicant’s belief that they have experienced discrimination.

7The question that the Tribunal must decide at a summary hearing is whether there is likely to be sufficient direct or indirect evidence available to connect the unfair treatment experienced by the applicant with the applicant’s personal characteristics. If the applicant is unable to point to circumstances beyond their own assumptions or belief, the application may be found to have no reasonable prospect of success.

8The parties are given an opportunity to make submissions, usually on a telephone conference call, during a summary hearing. These submissions are often helpful in clarifying the nature of the allegations.

9The primary focus in the summary hearing is on the applicant’s evidence. The respondent’s explanation may be considered where there is no dispute about the facts or where it is plainly obvious that a fact must be true. However, the Tribunal is very careful to ensure that an application is not dismissed at the summary hearing stage simply because the respondent has an alternative explanation of the events. The Tribunal is also mindful of the fact that in some cases the application must proceed further in the hearing process because the respondent is the party who has control over the evidence which could assist the applicant’s case.

10Having set out the basic framework for determining whether an application should be dismissed in whole or in part for no reasonable prospect of success, I now turn to the facts of the Applications in this case.

Sunter Application

11The applicant was given an opportunity to make submissions to assist the Tribunal in determining whether the Application should proceed. Specifically, the applicant was asked to assist the Tribunal in understanding the connection between the respondent’s alleged actions and the prohibited ground of discrimination alleged in the applicant’s Application. The respondent also made submissions in support of dismissing the Application.

12The applicant states that he is an individual with a disability, which he describes as “head injury and subsequent PTSD [Post Traumatic Stress Disorder] related to an attack in 1998”.

13The applicant was a tenant of the respondent from March 4, 2011 to August 1, 2012. The rental premises were located in the basement of the dwelling. According to the applicant, there was no walkway to the entrance at the back of the house and the lighting was poor. The applicant alleges that the respondent poorly installed a walkway in or about July 2011, laying stones on top of freshly shovelled earth and surrounded by rolls of laid out grass. By October 2011 the walkway started to displace itself. On October 6, 2011, the applicant approached the respondent about finishing the walkway for safety reasons. The respondent ignored the request. The applicant filed a complaint with the City of Ottawa on November 22, 2011. On November 24, 2011, the respondent was informed of the complaint to the City of Ottawa and he laid cement stones across the grass where the applicant had to walk. On November 24, 2011, the respondent also served on the applicant a Notice of Rent Increase indicating that the applicant’s rent would increase effective March 1, 2012. The Notice indicates that the rent increase is less than or equal to the rent increase guideline and does not need approval by an order under the Residential Tenancies Act, 2006, S.O. 2006, c.17. The applicant filed a second complaint with the City of Ottawa on November 28, 2011, with respect to the landlord’s walkway repairs effected on November 24 and also complaining about the stairway lighting.

14On November 29, 2011, a by-law officer from the City of Ottawa attended the premises. The applicant spoke to the by-law officer and voiced his concerns over the lighting in the stairwell as well as the respondent’s failure to put in a walkway for the winter. The applicant also advised the by-law officer that he is an individual who suffered a serious head injury and is in receipt of Ontario Disability Support Program (“ODSP”) benefits. The by-law officer told the applicant that the landlord had been given until spring to put in a walkway.

15On November 30, 2011, the applicant sent an email to the respondent regarding his obligations under the Code and gave him two weeks to commence work. At the summary hearing the applicant indicated that at this time he told the respondent that he would commence proceedings with the Tribunal.

16On December 1, 2011, the respondent served on the applicant a Notice to Terminate a Tenancy at the End of the Term for the Landlord’s or Purchaser’s Own Use requesting that the applicant vacate the premises by February 28, 2012 because the landlord required the premises for the personal use of his spouse. I note that the applicant advised that there was a hearing before the Landlord and Tenant Board (“LTB”) and that all tenants were required to move out by July 31, 2012, although one tenant remained past this date. On December 2, 2011, the respondent served the applicant with a Notice to Terminate the Tenancy Early, requesting that the applicant vacate the premises by December 31, 2011, because of the applicant’s interference with the reasonable enjoyment of the premises by another tenant or the landlord. This Notice sets out a number of reasons in support of the respondent’s request. The applicant states that the reasons cited were fabricated or exaggerated. The applicant filed a maintenance complaint with the LTB. A hearing was held on January 11, 2012, and a decision rendered January 27, 2012. The LTB found that the landlord did not fail to meet his obligations to repair or maintain the rental unit and did not fail to comply with health, safety, housing and/or other maintenance standards. Further, the LTB found that the applicant did not provide any evidence that he was a person with a disability. There were several other applications filed with the LTB by both the respondent and applicant. The applicant ultimately withdrew a number of applications he had filed. There were also hearings before the LTB on some of the applications. The applicant takes issue with the evidence the respondent provided to the LTB in the course of these various proceedings, how the LTB proceedings were conducted by the LTB adjudicators, as well as with the LTB’s decisions.

17The applicant alleges that he was discriminated against on the basis of disability by the landlord’s failure to put in a proper walkway because the icy and unsafe conditions were a threat to his health. When asked what evidence he would present at a hearing to show a link between the landlord’s alleged actions and his disability, the applicant replied that he would have pictures showing the state of the walkway as well as testimony of another tenant as to the state. It was his position that the fact that he had an existing head injury put him at greater risk of serious injury should he fall on the walkway and the landlord disregarded this. I note that the applicant was not injured using the walkway nor was he prevented from accessing his rental premises because of the condition of the walkway.

18The applicant has not pointed to any evidence that he has or that is reasonably available to him that would link the respondent’s alleged actions or inactions to his disability. I appreciate that the applicant feels that the respondent did not provide a proper walkway. However, the applicant has failed to point to any evidence that he has or that is reasonably available to him that the respondent’s failure to do so was because of the applicant’s disability.

19The applicant must point to some evidence, with some reasonable basis to establish that he is capable of proving a link to the personal characteristic at issue, in this case disability. It is not enough to merely point to the fact that the applicant is a member of a protected ground and suffered adverse treatment. Some basis for a connection between these two assertions must be made. The applicant has failed to make such a connection.

20Accordingly, there is not a reasonable prospect that the Application will succeed on the ground of disability.

21With respect to reprisal, the reprisal section of the Code only applies to actions that are intended as a reprisal for asserting one’s human rights. See Noble v. York University, 2010 HRTO 878 at para. 31. For the purposes of a summary hearing, to proceed with reprisal allegations, there must be some evidence that the applicant can point to or that is reasonably available to him to believe that he could establish such intention and a link between the ground of reprisal and the respondent’s alleged actions.

22The applicant contends that the respondent started harassing him when the applicant advised him of his obligations under the Code and told him he would commence proceedings with the Tribunal and gave him two weeks to commence the work on the walkway. The applicant alleges that the respondent engaged in reprisal by filing the LTB applications and by approaching another tenant to provide an email about the applicant for the sole purpose of evicting him. He states that the email was used at the January 11, 2012 LTB hearing. Also, the respondent is alleged to have engaged in reprisal by lying to the LTB by filing false documents with it and also by making false statements to the LTB.

23The respondent submits that he was within in his rights to pursue legal remedies before the LTB and notes that no orders were issued that doing so was an abuse of process. Also, the respondent submits that his actions in relation to the LTB applications predate the Application and thus cannot amount to a reprisal. However, there is no requirement that the applicant file an application under the Code in order to claim reprisal. Protection against reprisal extends to any attempt to enforce one’s rights under the Code.

24In order to prove reprisal at a hearing, there must be evidence to establish a threat or that an action was intended as retaliation for asserting Code rights. The respondent filed Notices with the LTB after the applicant sent him information on his obligations under the Code and advised him he would commence proceedings with the Tribunal. While a negative inference might have been raised given the timing of the LTB Notices, the respondent was within his rights to institute proceedings permitted pursuant to the Residential Tenancies Act. The Notice with respect to rent increase indicates that the increase sought is permissible without an order under the Residential Tenancies Act. With respect to the Notice to vacate the premises for personal use of the respondent’s spouse, this Notice affected all of the tenants and all were required to move out. As noted above, the applicant also exercised the rights available to him pursuant to the Residential Tenancies Act and filed several applications with the LTB. Both parties availed themselves of the legal recourse available to them pursuant to the landlord and tenant statutory scheme and the LTB addressed their applications in accordance with that statutory scheme.

25The applicant contends that the respondent’s actions and evidence (as noted above, the applicant alleges that the respondent lied to the LTB) in the course of the LTB proceedings amounts to reprisal. The actions of the respondent in the course of litigation before the LTB, which this Tribunal is not reviewing or deciding, cannot constitute reprisal. It is not the role of the Tribunal to review the LTB hearing process or its decisions.

26The applicant has not provided evidence or pointed to any evidence that is reasonably available to him that would support a basis on which it could be found that the respondent intended to reprise against him. Accordingly, I find that there is no reasonable prospect that the Application will succeed on the ground of reprisal.

27Given my findings above, it is not necessary to address the issues of delay, whether another proceeding has appropriately dealt with the substance of the Application, abuse of process and/or issue estoppel.

City Application

28As noted above, the applicant filed a complaint with the City of Ottawa on November 22, 2011, with respect to the failure of the landlord to put in a walkway. The applicant contacted the City again on November 28, 2011, because no one from the City had contacted him to this point and also to complain about the landlord’s solution to the walkway issue (the landlord had laid walkway stones across the grass on November 24); in addition, to complain about the stairway lighting. On November 29, 2011, a by-law officer from the City attended the premises. The applicant states that he explained to the officer that he is a person in receipt of ODSP benefits and has suffered a serious head injury. The officer told him that the landlord had been granted an extension until spring to put in a walkway. According to the applicant, the landlord did not do so and the City did not ensure that he did. As such, the Applicant alleges that the City failed to enforce property standards laws and did not care that he is a person with a disability.

29The applicant states that the evidence in support of his allegations is the muddy/icy state of the walkway. Even if I accept the applicant’s allegations as true, there is no evidence to connect the City’s actions or inactions to the prohibited ground of disability. The City’s failure to enforce its property standards laws does not engage the Code. As noted above, the Tribunal cannot address general allegations of unfairness, unrelated to the Code. Accordingly, I find that there is no reasonable prospect that the City Application will succeed.

30Given my finding, it is not necessary to address the issue of delay.

ORDER

31The Applications are dismissed.